I am unable to concur with the chief judge's opinion. It ignores, or nullifies, a contract of the parties and reaches its conclusion by importing into their unqualified agreement a restriction upon its general terms. The contract of carriage is perfectly plain, and the agreement in question is conspicuously and legibly printed upon the ticket and is quite unambiguous. The contract was to carry the plaintiff and her children from New York to Cherbourg, in the first cabin of one of defendant's steamers, sailing at a specified date, for the sum of $200. Immediately following, *Page 286 in heavy type, are the words that "it is mutually agreed that this ticket is issued by the North German Lloyd Steamship Co. and accepted by the passenger on the following conditions." Equally legible among the five conditions referred to is the one that "it is agreed that neither the ship owner * * * nor the ship is in any case liable for loss * * * of luggage or personal effects of the passengers beyond the amount of one hundred dollars, unless the value of the same in excess of that sum be declared * * * at or before the delivery of said luggage to the ship," etc. That was an agreement between the parties that "in any case" of liability for a loss, the valuation of the passenger's "luggage, or personal effects," was fixed at $100; but it might be declared to be in excess of that sum up to the moment of plaintiff's delivery to defendant. Language could not more comprehensively, I think, express an agreement between the defendant and its passenger with respect to that feature of their relations. If the agreement was not to be taken so positively, as to the limit of the defendant's liability for the passenger's loss; if any exception was intended to the application of the agreement, it would have been very easy and very natural to have so stipulated. The passage agreement was deliberately made; there was ample opportunity for the plaintiff to regulate her actions accordingly and she had been a frequent passenger by this line.
By accepting the ticket for the intended passage, she declared her acceptance of its terms and the relative rights and agreements of the parties became obligatory. The agreement as to the valuation of the luggage was for their mutual advantage. It guarded the defendant against fraud and its price for the carriage, presumably, was measurably based upon the limited liability. It advantaged the plaintiff; because, while liquidating the value of her portable effects "in any case of loss," it allowed her to declare, up to the time that the defendant assumed any responsibility therefor, a greater value. An undue importance seems to be attributed by Judge CULLEN to the language "freight at current rates to *Page 287 be paid" on any excess in value over $100. The term "freight," however, is but the technical term to express the price to be paid for the carriage, or transportation, of goods and was the phraseology proper to be used in an agreement to pay for any increased assumption of liability over what had been fixed by agreement. The ticket was intended to regulate the mutual rights and obligations of the parties from the moment that relations commenced between them and no one can, in my opinion, with reason, or with justice, read its plain terms with other effect. Those relations commenced and the passage contract became operative, when the plaintiff arrived at the defendant's pier and claimed the right to have herself and her effects carried. She chose to surrender her effects to the defendant's servants. She was not obliged to do so and she might have retained the custody of the suit cases until deposited where she should choose to deposit them. She did not so elect. When she delivered them to the baggage master, she delivered them to the defendant, and how could it be material to the contractual relation, or affect its terms, whether its custody and care were for the whole voyage, or for a shorter time? The moment the defendant became responsible for them at all, the liability, necessarily, was measured by the value theretofore agreed upon; if not then otherwise declared. Is it just to hold that she was excused from declaring to the defendant's agent, when delivering her effects into his custody, that they were of considerable value and in excess of $100? Was the defendant not to be apprised, in fair dealing, of the greater value? If, as we must assume, the price of the passage was proportioned to the liability agreed upon, then there is no justice in allowing the plaintiff to be paid a larger value for her suit cases. We may apply the observation in Hart v. Penna.R.R. Co., (112 U.S. 331), though the carriage contract there related to a shipment of horses, that "it is just to hold the shipper to his agreement, fairly made, as to the value, even where loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight *Page 288 and secure the carriage, if there is no loss; and the effect of disregarding the agreement, after a loss, is to expose the carrier to a greater risk than the parties intended he should assume. The agreement as to the value, in this case, stands as if the carrier has asked the value of the horses and had been told by the plaintiff the sum inserted in the contract." It must be borne in mind that this contract did not seek to exempt the carrier from negligence; but, to the contrary, contemplated the possible case of negligence causing loss and liquidated the damage in such event at a sum named. There is no analogy with the innkeeper's liability. It was not like the theft of an article from the cabin of the passenger. It was, purely, a case of the failure of the carrier to adequately care for the luggage delivered to it. A passenger may take all of his luggage in his cabin; or he may send a part of it to the ship's hold. In either case, he will intrust all, or only some portions, to the carrier and how can it affect the question of the latter's liability, whether the delivery by it to the passenger is to be made at the end of the voyage, or after the voyage has commenced? To say that there may be a hiatus in the relation of a carrier to its passengers and that there can be an interval of time, when, notwithstanding that the luggage had been delivered to the former, no contractual relation existed between the parties, is as illogical, as it is unreasonable. Whenever delivered to the carrier, upon the inception of the contractual relation, the obligation of the latter attaches and requires a delivery to the passenger at some time before, or at, the end of the voyage, as arranged.
In Steers v. Liverpool, N.Y. P.S.S. Co., (57 N.Y. 1), a trunk, which the plaintiff had delivered to the defendant, was never found. Her passage ticket contained the limitation, in the case of a loss of luggage, that not "in any event, shall the passenger demand beyond the sum of fifty dollars ($50), at which said Baggage is valued, unless a bill of lading or receipt be signed therefor, specifying the articles and their respective values." The defendant was held liable for the loss of the trunk; but the amount of the recovery was *Page 289 limited to the specified sum of fifty dollars. In that case it appeared that the plaintiff had not even seen her ticket until she arrived at Queenstown; but that was not considered to be of importance. The opinion of the court pointed out the difference between the purchase of such a ticket and that of a railway ticket, or the taking of an express company's receipt, and held the plaintiff's ticket to be a contract between the parties, mutually assented to, touching the voyage in question and controlling. In Wheeler v. Oceanic Steam Navigation Co., (72 Hun, 5; affd., 149 N.Y. 576), the plaintiff sued for the value of a certain package, which the defendant had received from her and had stated to her it had placed upon the steamer; but which was never, subsequently, delivered to her. Her passage ticket contained an agreement limiting the company's liability to an amount not exceeding £ 10, which she said she had never noticed; but it was held that the amount of her recovery should be limited to the sum stated in the ticket, which constituted a contract between the parties.
However we look at the present case, we find a contract, which is quite unobjectionable. The fact is that the parties agreed as to the measure of the defendant's liability, "in any case" of a loss of luggage or personal effects, and it is futile to generalize upon the situation and to conclude that something else was meant. Neither the nature of the liability nor the cause of the loss, could have any effect upon the agreed value of the luggage in the event of its loss.
For these reasons, I vote for the reversal of the judgment and that a new trial should be ordered.
EDWARD T. BARTLETT, HAIGHT and CHASE, JJ., concur with CULLEN, Ch. J.; O'BRIEN and WERNER, JJ., concur with GRAY, J.
Judgment affirmed. *Page 290